2015Guhap51712. Revocation of revocation of a request for appointment

A

The Minister of Education

July 16, 2015

August 20, 2015

1. The Defendant’s refusal to recommend the president of the Korea National University on December 15, 2014 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff is working as a professor of the Department of Life Science of National University B (hereinafter referred to as the "university of this case").

B. According to Article 24 of the Public Educational Officials Act, Articles 12-2, 12-3 of the Decree on the Appointment of Public Educational Officials, and Article 3 of the University Regulations, “Rules on the Selection and Management Committee of Candidates for Presidents, which are necessary matters concerning the selection and recommendation of senior candidates after the president of the University of this case, shall be established and organized, public announcement of the invitation of president candidates, establishment and organization of the Committee on Recommendation of Candidates for Presidents, procedures for the selection of candidates, etc.

C. As stipulated in the foregoing provision, the selection procedure of the 18th president of the University of this case was carried out, and as a result of voting conducted on October 17, 2014 at the 17th president candidate recommendation committee of the University of this case, the Plaintiff obtained the greatest number of votes, and C professor obtained the greatest number of votes thereafter.

D. On November 3, 2014, the instant university recommended the Plaintiff as the first candidate, and C as the second candidate, to the Defendant as the 18th president candidate of the instant university.

E. On December 15, 2014, the Defendant sent to the president of the instant university, following deliberation by the Committee for Personnel Management of Public Educational Officials pursuant to Article 24(6) of the Public Educational Officials Act, a letter of official title stating the “request for re-recommendation of a candidate for appointment of the president” to the instant university, which states that the candidate for president recommended at the instant university would not be recommended. In this context, the instant university sent a letter of official title stating the “request for re-recommendation of a candidate for appointment of the president” (hereinafter “instant rejection of recommendation”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1 through 3, Gap evidence 7-1 through 4, Gap evidence 8-2, and the fact-finding results for Eul University of this Court, the purport of the whole pleadings and arguments

2. Determination as to the defendant's defense prior to the merits

A. The defendant's assertion

The instant lawsuit is unlawful for the following reasons.

1) An act of not recommending or recommending to recommend is merely an internal decision-making process among administrative agencies, and the rejection of the recommendation for appointment in this case is merely a notification of the fact that the university in this case does not recommend the president candidate, and it does not constitute an administrative disposition that is subject to appeal litigation.

2) The university of this case only has the right to recommend a candidate for the head of university pursuant to Article 24(1) of the Public Educational Officials Act, and whether to recommend a candidate is unique authority of the defendant. Therefore, the plaintiff, who is only a person recommended by the university of this case as president candidate, cannot be deemed to have the right to request a recommendation for appointment under laws or cooking to the defendant. Thus, even if the defendant did not recommend the plaintiff to the head of the university of this case, it cannot be deemed a rejection disposition

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Details and history of the laws and regulations on appointment of presidents

A) The main sentence of Article 24(1) of the Public Educational Officials Act provides that the head of a national university (hereinafter referred to as the “head of a national university”) shall be appointed by the President on the recommendation of the Minister of Education upon the recommendation of the relevant university. Article 24(2) of the same Act provides that a president recommendation committee (hereinafter referred to as the “recommendation committee”) shall be established in a university for the recommendation of appointment by the president under the main sentence of paragraph (1) of the same Article. Paragraph (3) of the same Article provides that the recommendation committee shall select a candidate by one of the methods and procedures agreed upon by the relevant university or college faculty members (the method of so-called liver system) or the selection by one of the methods and procedures agreed upon by the relevant university or college faculty members (the method of so-called elective system), and that the number of members shall be more than a certain ratio of members when determining matters necessary for the organization, operation, etc. of such recommendation committee shall be determined by Presidential Decree (Article 12-3(1) of the Decree on the appointment of the relevant university or college.

B) On the other hand, Article 8(1) of the Public Educational Officials Act (amended by Act No. 285, Apr. 18, 1953), which was enacted on April 18, 1953, shall be appointed by the President on the recommendation of the President for literature issuance, with the consent of the president of the president. After that, Article 25 of the Public Educational Officials Act (amended by Act No. 1463, Dec. 5, 1963), which was amended on Dec. 5, 1963, deleted the requirements for " consent of the faculty council" (Article 24(1) of the Public Educational Officials Act (wholly amended by Act No. 3458, Nov. 23, 1981). Article 24(1) of the Public Educational Officials Act (amended by Act No. 4348, Mar. 8, 191), which was amended by Act No. 4348, the president shall be appointed by the president of the relevant university on the recommendation of the Minister of Education.

2) Legal meaning of the recommendation of the president of a university

A) Article 31(4) of the Constitution provides that the autonomy and professionalism of education and the autonomy of a university shall be guaranteed under the conditions as prescribed by Act. The autonomy and autonomy of a university under the said Constitution excludes interference of external power, such as public authority, with respect to a university, and allow a university (university) to voluntarily operate a university, thereby allowing a university to fully demonstrate the function of a university, which means that a university should freely conduct research and provide education, and that such is essential as a definite means of guaranteeing the freedom of learning guaranteed by Article 22(1) of the Constitution (see, e.g., Constitutional Court Order 92Hun-Ma68, Oct. 1, 1992).

Of course, the autonomy of a university is also a fundamental right under the Constitution, and it can be restricted pursuant to Article 37(2) of the Constitution that provides for the principle of general reservation of restriction of fundamental rights, and the details of autonomy of a university is guaranteed as prescribed by the Act. However, it constitutes an essential substance of university autonomy where a member of a university participates in the election of president candidates and recommends the president candidates to the Minister of Education according to the result, which constitutes a recommendation of the president candidates to the Minister of Education (see, e.g., Constitutional Court Order 2005Hunma

B) The constitutional meaning of university autonomy, the content and amendment history of the Public Educational Officials Act, the relevant public educational officials’ appointment procedures, in particular, Article 12-3(1) of the Decree on the Appointment of Public Educational Officials provides that not only teachers of the relevant university but also employees and students shall participate as members of the Recommendation Committee. ② The president has the authority to exercise overall control over school affairs and supervise school personnel under his/her control and guide students (Article 15(1) of the Higher Education Act) and to establish or amend school regulations within the scope of Acts and subordinate statutes (Article 6(1) of the Higher Education Act). The school regulations include matters that have significant impact on employees and students, such as basic organization, conferment of degrees, sexual evaluation, scholarship payment, etc. of universities (Article 4(1) of the Enforcement Decree of the Higher Education Act). Thus, it is evident that the specific and practical need to ensure that students and students, who are not teachers, should also participate in the selection process of president candidates, and the president’s autonomy and status of president’s appointment of universities and colleges as the one of universities and colleges.

C) In addition, the above statutes stipulate that the process of president appointment shall be recommended by the relevant university, and the method of recommendation shall be determined by the method and procedure agreed upon by the relevant university faculty members or by the method and procedure agreed upon by the relevant university’s faculty members is intended to realize the autonomy of university in the process of president appointment. As such, the appointment-recommendation authority or the appointment-recommendation authority shall respect the autonomy of university in the process of president appointment, and in this respect, the appointment-recommendation authority or the appointment-recommendation authority shall also be restricted

Where a university recommends two or more presidents' candidates, the authority to recommend appointment shall examine whether a candidate meets the qualification of the president after consulting with the personnel committee for teachers and public officials in charge of appointment shall recommend one of such candidates recommended, and the authority to recommend appointment shall determine whether to appoint a candidate recommended as the president.

A appointment-recommendation authority has the duty to fairly examine not only the legality of recommendation, but also the ability, expertise, aptitude, and character of the recommended candidate in a reasonable manner. Since a appointment-recommendation authority is not entirely bound by the recommendation of a university, it may choose not to recommend a candidate among the recommended candidates, if deemed that there is no qualified person among the recommended candidates of a university, but also should explicitly indicate the legitimate grounds for rejection of such recommendation.In this case, it is not permissible to abolish the appointment and recommendation process of the president of a university as a dance procedure due to the failure of the university to recommend all of the candidates recommended by the university through legitimate procedures without any justifiable reason by the appointment-recommendation authority. In light of the legislative intent of the above Acts and subordinate statutes concerning the appointment of the president, it is not permitted to violate the autonomy of the university or the autonomy of the university (the right to participate in the election of the president of a university or college and the right

3) Whether a statutory or cooking right to dispute the rejection of the proposal for appointment of this case is recognized

The appointment of appointment authority is a discretionary act, and the proposal for appointment is an act falling under the internal decision-making process between administrative agencies, and in itself has no effect of changing rights and duties, and thus, the proposal for appointment is not an administrative disposition subject to administrative litigation.

However, the act of an appointment-recommendation authority to donate a proposal for appointment to the president candidate recommended by a university or college shall be different. Such an act may be deemed to correspond to the rejection of appointment by the appointment authority, by blocking the appointment of the president candidate.

In the case of refusal of appointment as a university faculty member, in principle, it cannot be deemed that the appointment applicant has the right to request the appointment as a matter of principle. Thus, barring any special circumstance, he/she cannot be deemed to have a right under the law or sound reasoning to request the submission of a response to his/her appointment. However, in cases where an appointment applicant acquires the status that he/she would be expected to be appointed as the only person subject to interview by passing through most stages of the appointment examination, he/she shall be deemed to have the right to request the appointment applicant to be appointed when he/she passes the examination (see, e.g., Supreme Court Decision 2001Du7053, Jun. 11, 2004).

As seen earlier, it is reasonable to view that a member of a university participates in the selection process of president candidate and recommending a candidate of president elected by a university to the Minister of Education constitutes the essential substance of university autonomy, and such legal doctrine can be invoked in the appointment process of president of a university, and if a member of a university obtains a position that can reasonably be expected to be appointed as president, there is a legal interest in contesting the refusal of appointment recommendation.

In this case, inasmuch as the Plaintiff was selected by the Recommendation Committee through various stages from among the applicants for president candidates of the instant university and recommended as the Defendant as president candidate, it is reasonable to deem that the Plaintiff obtained the status that would have considerable expectations to be appointed as president of the instant university. Therefore, the Plaintiff has the right under laws and regulations to apply for the appointment of one of president candidates to the Defendant, who refuses to recommend the appointment of president candidates recommended by the instant university and college through fair and objective examination.

4) Conclusion

In light of the above circumstances, the rejection of the request for appointment of this case constitutes a rejection disposition subject to appeal litigation. Thus, the defendant's prior defense on the merits is without merit.

3. Whether the refusal of the recommendation for appointment of this case is legitimate.

A. The plaintiff's assertion

1) The Plaintiff was recommended as the first president candidate of the university of this case, and the Defendant rejected the proposal for appointment without any particular reason, even though there is no loss, such as ability, expertise, aptitude, and character, as the appointment of the president of the university of this case was made. This is unlawful as it deviates from and abused the discretion in exercising the proposal for appointment.

2) The Defendant refused to recommend the appointment of the instant case and did not present its grounds and reasons, which is procedurally unlawful as it violates Article 23(1) of the Administrative Procedures Act.

B. Determination

1) Determination on the assertion of deviation or abuse of discretionary power

As seen earlier, the appointment-recommendation authority may choose not to recommend a candidate for president who is deemed disqualified, but shall present reasonable grounds to reject the recommendation for appointment for all the candidates for president recommended by the university or college.

However, in the case of this case, it is difficult to determine whether the refusal to recommend the appointment of this case is within the scope of the defendant's personnel authority or beyond the scope of the defendant's personnel authority because the defendant does not fully state the reason why the plaintiff was not requested to recommend the appointment. However, since the disposition of this case is revoked on the grounds that there are any more procedural grounds, this part of the argument is unnecessary to consider. (The plaintiff asserts that the plaintiff's assertion about deviation and abuse of discretionary authority is preliminaryly asserted the procedural defect, but both arguments are not in a relationship of the primary claim and conjunctive claim, and they are not in a relationship between the plaintiff's primary claim and the conjunctive claim, and the court does not t

2) Determination of procedural defect assertion

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall, when making a disposition, require the relevant party to present the grounds and reasons therefor. In addition, as seen earlier, it is not allowed to set up a procedure to dance on the recommendation of university due to the failure of all candidates recommended by the university to recommend the appointment of university without any special reason, by going through legitimate procedures in light of the legislative intent of relevant Acts and subordinate statutes, such as the Public Educational Officials Act. Therefore, reasonable grounds should be presented in order to refuse the

In light of the above, the defendant's rejection of the recommendation for appointment of this case only stated the reason that "the defendant decided not to recommend a candidate for recommendation after deliberation by the Personnel Committee for Public Educational Officials", and there is no specific reason and reason. Thus, the plaintiff is dissatisfied with the rejection of the recommendation for appointment of this case, thereby hindering the plaintiff from moving to an administrative remedy procedure, and therefore, the rejection of the recommendation for appointment of this case has a procedural reason.

In regard to this, the defendant alleged that the rejection of the recommendation for appointment of this case constitutes "matters deemed difficult or unnecessary to undergo administrative procedures due to the nature of the relevant administrative action, such as disciplinary action and other dispositions in accordance with the laws and regulations related to the personnel affairs of public officials" under Article 3 (2) 9 of the Administrative Procedures Act, but it is evident that the rejection of the recommendation for appointment of this case does not constitute disciplinary action, and there is no other evidence to find it difficult or unnecessary to undergo administrative procedures due to its nature.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Presiding Judge, Judge Park Jung-chul

Judges Civil Service Bureau

Judges Park Jong-young

A person shall be appointed.

A person shall be appointed.